Wisconsin Court of Appeals: Plaintiff wins case but loses on attorney fees.

• Author: Ziemer, David

Byline: David Ziemer

It's not unusual for a contract to provide that, if litigation ensues, the successful party shall be entitled to its attorney fees.

However, defining successful isn't always so simple, as an Oct. 27 opinion from the Wisconsin Court of Appeals demonstrates.

Although the plaintiff, Gwen Shadley, was awarded a verdict of more than $14,000 on the contract, she will likely owe money after the case is remanded to the trial court for calculation of fees, because she was awarded much less than she sought.

Jason J. Franckowiak, a Milwaukee attorney with Otjen, Van Ert & Weir, S.C., who represented the defendants, said he expects that his clients will come out ahead after the final accounting, a result he defended as consistent with the respective level of success of the parties.

Shadley contracted with Tim and Pamela Sty for the Stys to move her house from one lot in Wauwatosa to another. The contract provided, In the event that any action is filed in relation to this agreement, the unsuccessful party in the action shall pay to the successful party, in addition to all the sums that either party may be called on to pay, of [sic] reasonable sum for the successful part[y's] attorney fees.

The contract did not define successful or unsuccessful party.

Unsatisfied with the move, Shadley sued the Stys, alleging negligence and breach of contract and seeking more than $100,000. Shadley rejected a sec. 807.01 Offer of Judgment in the amount of $25,000.

The trial court ruled in favor of Shadley, but only awarded damages of $14,976.

In post-verdict motions, the court held that Shadley was the successful party, and awarded her $43,975 in attorney fees.

In finding Shadley a successful party, the trial court adopted the definition of prevailing party in Black's Law Dictionary: party in whose favor a judgment is rendered, regardless of the amount of damages awarded.

However, the court also ruled that the Stys were entitled to costs under sec. 807.01, and set-off those costs against the verdict, because the verdict was less than the Offer of Judgment.

Both parties appealed, and the Court of Appeals reversed, in an opinion by Judge Kitty K. Brennan.

The court found the terms successful party and unsuccessful party to be ambiguous, explaining, It does not seem to us that Shadley 'bested' the Stys or that the result was 'favorable' to her when she recovered only $14,976 after claiming a right to over $100,000.

The court added, it seems unlikely...